TMI Blog2018 (10) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER PER VIJAY PAL RAO, JM : This appeal by the assessee is directed against the order dated 18th December, 2017 of ld. CIT (A)-3, Jaipur for the assessment year 2012-13. The assessee has raised the following grounds :- 1. On the facts and in the circumstances of the case ld. CIT (A) has grossly erred in passing ex parte order without providing proper opportunity of being heard. Appellant prays order so passed is against the principles of natural justice and deserves to be quashed. 2. On the facts and in the circumstances of the case ld. CIT (A) has grossly erred in confirming the disallowance of commission of ₹ 39,62,472/- made by ld. AO arbitrarily. Appellant prays disallowance so confirmed deserves to be deleted. 3. On the facts and in the circumstances of the case ld. CIT (A) has grossly erred in confirming the addition of ₹ 5010/- made by ld. AO alleging the same as undisclosed interest income when the same was never received by the assessee. Appellant prays addition so made deserves to be deleted. 4. That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 in ITA No. 238/JP/2016 dated 19.07.2018 in para 5 as under :- 5. We have considered the rival submissions as well as relevant material on record. At the outset we note that the Coordinate Bench of this Tribunal in case of M/s Chocopack Enterprises vs. ITO (supra) has dealt with this issue of disallowance U/s 40(a)(ia) for want of deduction of TDS U/s 194H in respect of the commission paid to the retailer/sub-dealer. The said decision was subsequently followed by the Tribunal in case of Shri Virendra Kumar Jain vs. ITO (Supra) and held in para 4 as under:- 4. We have considered the rival submissions as well as the relevant material on record. The assessee has produced the confirmation from M/s. Vodafone Digilink Ltd. to show that the payment in question was directly paid by the said company to the retailers. The assessee has only carried out the necessary entries in his books of account for completion of record being the dealer and all the transactions are passing through the assessee. Once the payment in question was not made by the assessee and it was directly paid by the company and further the quantum and percentage of the said commission/discount was also in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M card was goods within the definition of the word in the State sales tax act. 86. It is not possible for this court to opine finally on the issue. What a SIM card represents is ultimately a question of fact as has been correctly submitted by the States. In determining the issue, however the assessing authorities will have to keep in mind the following principles : If the SIM card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the sales tax authorities to levy sales tax thereon. There is insufficient material on the basis of which we can reach a decision. However, we emphasise that if the sale of a SIM card is merely incidental to the service being provided and only facilitates the identification of the subscribers, their credit and other details, it would not be assessable to sales tax. In our opinion the High Court ought not to have finally determined the issue. In any event, the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination of sale price of recharge coupons is in the sole domain of the service provider and the assessee is no role in determining the retail price at which the retailer is selling the recharge coupons to the customer or end user of the service. Therefore, in the facts and circumstances of the case when the assessee s role is only an intermediatetory and passing the services from one hand to the other hand then merely because the assessee is showing an amount of commission/discount in the books of account for completeness of accounts and transactions will not impute any liability of deducting tax at source. The decisions relied upon by the ld. DR are also on the point where the service provider is allowing or paying the commission to the distributors or retailers and sale of sim cards as well as recharge coupons, therefore, even for the sake of arguments if it is accepted that the benefit allowed by the service provider to the distributors and retailers is commission it is service provider who is responsible for paying the said commission and therefore, the provisions of section 194H are not attracted against the distributor. Accordingly, when the assessee is not directly and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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